Exhibit 10.26


 


THIRD AMENDMENT TO THIRD

AMENDED AND RESTATED CREDIT AGREEMENT


 


THIS THIRD AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
(hereinafter referred to as the “Amendment”) executed as of the 28th day
of June, 2004, by and among ADDISON ENERGY INC., an Alberta, Canada corporation
(the “Borrower”), BANK ONE, NA, CANADA BRANCH, a national banking
association (“Bank One”), each of the financial institutions which is a
party hereto (as evidenced by the signature pages to this Amendment) or which
may from time to time become a party hereto pursuant to the provisions of
Section 28 of the Third Amended and Restated Credit Agreement or any
successor or assignee thereof (hereinafter collectively referred to as “Lenders”,
and individually, “Lender”), Bank One, as Administrative Agent (“Agent”),
BNP PARIBAS (CANADA), as Syndication Agent, THE BANK OF NOVA SCOTIA, as
Co-Documentation Agent and THE TORONTO-DOMINION BANK, as Co-Documentation
Agent.  Capitalized terms used but not
defined in this Amendment have the meanings assigned to such terms in that
certain Third Amended and Restated Credit Agreement dated as of
January 27, 2004, by and among the Borrower, Agent and the Lenders (as
amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”).


 


WITNESSETH:


 


WHEREAS,  the Borrower has requested that the Agent
and the Lenders amend the Credit Agreement to (i) modify a financial covenant
and the method for calculating the Borrower’s compliance with certain financial
covenants and (ii) replace the Pricing Schedule; and Agent and the Lenders have
agreed to do so on the terms and conditions hereinafter set forth.


 


NOW, THEREFORE, for
and in consideration of the mutual covenants and agreements herein contained
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged and confessed, the Borrower, Agent and the Lenders,
hereby agree as follows:


 


SECTION 1.                            Amendment to Credit Agreement.  Subject to the satisfaction or waiver in
writing of each condition precedent set forth in Section 3 hereof,
and in reliance on the representations, warranties, covenants and agreements
contained in this Amendment, the Credit Agreement shall be amended in the
manner provided in this Section 1.


 


1.1                               Additional
Definitions.  The following
definition shall be and it hereby is added in alphabetical order to Section 1
of the Credit Agreement:


 


Combined Revolving Commitment
means the sum of Dollar Equivalent of the Revolving Commitment plus the
“Revolving Commitment” under and as defined in the U.S. Credit Agreement.


 


1
















 


Combined Total Outstandings
means the sum of the Dollar Equivalent of Total Outstandings plus “Total
Outstandings” under and as defined in the U.S. Credit Agreement.


 


Net Working Capital
means (i) all Consolidated Current Assets of the Company and its Subsidiaries
(calculated without including the amount by which the Combined Revolving
Commitment exceeds the Combined Total Outstandings as of such date) minus (ii)
all Consolidated Current Liabilities of the Company and its Subsidiaries, in
each case as set forth in financial statements of the Company prepared in
accordance with GAAP.


 


Surplus Cash means
the lesser of (i) cash and Cash Equivalents (as defined in the U. S. Credit
Agreement) of the Company and its Subsidiaries, on a consolidated basis, and
(ii) the amount by which the Company’s Net Working Capital exceeds zero.


 


1.2                               Amended
Definitions.  The following
definition in Section 1 of the Credit Agreement shall be and it
hereby is amended in its entirety as follows:


 


Consolidated Current Assets
means, as of any date of determination, the total of the consolidated current
assets of the Company determined in accordance with GAAP as of such date, plus,
the amount by which the Combined Revolving Commitment exceeds the Combined
Total Outstandings as of such date, less any amount required to be
included in Consolidated Current Assets as a result of the application of FASB
Statement 133 as of such date.


 


Consolidated Funded Debt
means, as of any date, without duplication and with respect to any Person, the
sum of (x) (i) all obligations for borrowed money or for the purchase
price of property, (ii) all obligations evidenced by bonds, debentures,
notes, bankers’ acceptances or other similar instruments, (iii) all other
indebtedness (including obligations under Capital Leases, other than usual and
customary oil and gas leases) on which interest charges are customarily paid or
accrued, (iv) all guarantees of indebtedness, including reimbursement
obligations with respect to letters of credit, (v) the unfunded or
unreimbursed portion of all letters of credit, (vi) any indebtedness or
other obligation secured by a Lien on assets, whether or not assumed, and (vii) all
liability as a general partner of a partnership for obligations of that
partnership of the nature described in (i) through (vi) preceding,
minus, for purposes of calculating compliance with Sections 13(c) and 13(e)
only, (y) Surplus Cash.


 


1.3                               Amended
Debt Coverage Ratio.  Section 13(c)
of the Credit Agreement shall be and it hereby is amended in its entirety as
follows:


 


Debt Coverage Ratio.  Borrower will not allow the ratio of the
Company’s Consolidated Funded Debt (i) as of the last day of any fiscal quarter
ending on or before March 31, 2005, to the Company’s Consolidated EBITDA
for the trailing four fiscal quarter period ending on such date to be greater
than 4.35 to 1.00 and (ii) as of the last day of each fiscal quarter, beginning
with the fiscal quarter ending June 30, 2005, to the Company’s
Consolidated EBITDA for the trailing four fiscal quarter period ending on such
date to be greater than 4.00 to 1.00; provided that, in the event any
such period includes the date or dates on which one or more Acquisitions
occurred, the Company’s Consolidated EBITDA shall be adjusted to give effect,
on a pro forma basis, to such Acquisitions as if such Acquisitions occurred at
the beginning of such period.


 


2
















 


1.4                               Amended
Pricing Schedule.  The Pricing
Schedule shall be amended in its entirety by replacing such Pricing
Schedule with the Pricing Schedule attached hereto.


 


SECTION 2.                            Reaffirmation of Representations and
Warranties.  Except to the
extent its provisions are specifically amended, modified or superseded by this
Amendment, the representations, warranties and affirmative and negative
covenants of the Borrower contained in the Credit Agreement are incorporated
herein by reference for all purposes as if copied herein in full.  The Borrower hereby restates and reaffirms
each and every term and provision of the Credit Agreement, as amended,
including, without limitation, all representations, warranties and affirmative
and negative covenants.  Except to the
extent its provisions are specifically amended, modified or superseded by this
Amendment, the Credit Agreement, as amended, and all terms and provisions
thereof shall remain in full force and effect, and the same in all respects are
confirmed and approved by the Borrower, the Agent and the Lenders.


 


SECTION 3.                            Conditions. 
The amendment to the Credit Agreement contained in Section 1
of this Amendment shall be effective upon the satisfaction of each of the
conditions set forth in this Section 3.


 


3.1                               Execution and Delivery.  The Borrower shall have executed and
delivered this Amendment, and other required documents, all in form and
substance satisfactory to the Agent.


 


3.2                               Amendment
of Other Agreements.  The Agent shall
have received a fully-executed copy of the amendment to the U.S. Credit
Agreement in the form attached hereto as Exhibit “A”.


 


3.3                               Representations and Warranties.  The representations and warranties of the
Borrower under this Amendment are true and correct in all material respects as
of such date, as if then made (except to the extent that such representations
and warranties related solely to an earlier date).


 


3.4                               No Event of Default.  No Event of Default shall have occurred and
be continuing nor shall any event have occurred or failed to occur which, with
the passage of time or service of notice, or both, would constitute an Event of
Default.


 


3.5                               Other Documents.  The Agent shall have received such other
instruments and documents incidental and appropriate to the transaction
provided for herein as the Agent or its counsel may reasonably request, and all
such documents shall be in form and substance satisfactory to the Agent.


 


3.6                               Legal Matters Satisfactory.  All legal matters incident to the
consummation of the transactions contemplated hereby shall be reasonably
satisfactory to special counsel for the Agent retained at the expense of the
Borrower.


 


3
















 


SECTION 4.                            Miscellaneous.


 


4.1                               Additional Representations and
Warranties.  The Borrower
hereby represents and warrants that all factual information, if any, heretofore
and contemporaneously furnished by or on behalf of the Borrower to Agent for
purposes of or in connection with this Amendment does not contain any untrue
statement of a material fact or omit to state any material fact necessary to
keep the statements contained herein or therein from being misleading.  Each of the foregoing representations and
warranties shall constitute a representation and warranty of the Borrower made
under the Credit Agreement, and it shall be an Event of Default if any such
representation and warranty shall prove to have been incorrect or false in any
material respect at the time given.  Each
of the representations and warranties made under the Credit Agreement
(including those made herein) shall survive and not be waived by the execution
and delivery of this Amendment or any investigation by Agent or the Lenders.


 


4.2                               Indemnification.  The Borrower agrees to indemnify and hold
harmless Agent and the Lenders and their respective officers, employees,
agents, attorneys and representatives (singularly, an “Indemnified Party”, and
collectively, the “Indemnified Parties”) from and against any loss, cost,
liability, damage or expense (including the reasonable fees and out-of-pocket expenses
of counsel to Agent or the Lenders, including all local counsel hired by such
counsel) (“Claim”) incurred by Agent or the Lenders in investigating or
preparing for, defending against, or providing evidence, producing documents or
taking any other action in respect of any commenced or threatened litigation,
administrative proceeding or investigation under any federal securities law,
federal or state environmental law, or any other statute of any jurisdiction,
or any regulation, or at common law or otherwise, which is alleged to arise out
of or is based upon any acts, practices or omissions or alleged acts, practices
or omissions of the Borrower or its agents or arises in connection with the
duties, obligations or performance of the Indemnified Parties in negotiating,
preparing, executing, accepting, keeping, completing, countersigning, issuing,
selling, delivering, releasing, assigning, handling, certifying, processing or
receiving or taking any other action with respect to the Loan Documents and all
documents, items and materials contemplated thereby even if any of the
foregoing arises out of an Indemnified Party’s ordinary negligence.  The indemnity set forth herein shall be in
addition to any other obligations or liabilities of the Borrower to the Lenders
hereunder or at common law or otherwise, and shall survive any termination of
this Amendment, the expiration of the Loan and the payment of all indebtedness
of the Borrower to the Lenders hereunder and under the Notes, provided that the
Borrower shall have no obligation under this section to the Lenders with
respect to any of the foregoing arising out of the gross negligence or willful
misconduct of the Lenders.  If any Claim
is asserted against any Indemnified Party, the Indemnified Party shall endeavor
to notify the Borrower of such Claim (but failure to do so shall not affect the
indemnification herein made except to the extent of the actual harm caused by
such failure).  The Indemnified Party
shall have the right to employ, at the Borrower’s expense, counsel of the
Indemnified Parties’ choosing and to control the defense of the Claim.  The Borrower may at its own expense also
participate in the defense of any Claim. 
Each Indemnified Party may employ separate counsel in connection with
any Claim to the extent such Indemnified Party believes it reasonably prudent
to protect such Indemnified Party.  The parties intend for the provisions of this
Section to apply to and protect each Indemnified Party from the
consequences of strict liability imposed or


 


4
















 


threatened to be imposed on any Indemnified
Party as well as from the consequences of its own negligence, whether or not
that negligence is the sole, contributing, or concurring cause of any Claim,
but not from any portion of such Claim arising from the gross negligence or
willful misconduct of any Indemnified Party.


 


4.3                               Counterparts. 
This Amendment may be executed in one or more counterparts
and by different parties hereto in separate counterparts each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.  However, this Amendment shall
bind no party until the Borrower, Agent and Lenders have executed a
counterpart.  Facsimiles shall be
effective as originals.


 


4.4                               WRITTEN CREDIT AGREEMENT.  THE CREDIT AGREEMENT, AS AMENDED, REPRESENTS
THE FINAL AGREEMENT BETWEEN AND AMONG THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES.  THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN AND AMONG THE PARTIES.


 


4.5                               No Impairment.  The Borrower acknowledges and agrees that the
renewal, extension and amendment of the Credit Agreement shall not be
considered a novation of account or new contract but that all existing rights,
titles, powers, and estates in favor of Agent and the Lenders constitute valid
and existing obligations in favor of Agent and the Lenders.  The Borrower confirms and agrees that
(a) neither the execution of this Amendment nor any other Loan Document
nor the consummation of the transactions described herein and therein shall in
any way effect, impair or limit the covenants, liabilities, obligations and
duties of the Borrower under the Loan Documents and (b) the obligations
evidenced and secured by the Loan Documents continue in full force and effect.


 


5
















 


IN WITNESS WHEREOF,
the parties have caused this Third Amendment to Third Amended and Restated
Credit Agreement to be duly executed as of the date first above written.


 


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  ADDISON ENERGY INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ J. DOUGLAS RAMSEY

  	
   

  
	
   

  	
  Name:

  	
  J. Douglas Ramsey

  
	
   

  	
  Title:

  	
  Vice President and Chief Financial Officer

  



 
















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
  BANK ONE, NA, CANADA BRANCH

  
	
   

  	
  as a Lender and as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ TOM K. MARTIN

  	
   

  
	
   

  	
  Name:

  	
  Tom K. Martin

  
	
   

  	
  Title:

  	
  Associate Director

  



 
















 


	
   

  	
  BNP PARIBAS (CANADA)

  
	
   

  	
  as a Lender and as Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ EDWARD PAK

  	
   

  
	
   

  	
  Name:

  	
  Edward Pak

  
	
   

  	
  Title:

  	
  Assistant Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ CHARLES RITCHIE

  	
   

  
	
   

  	
  Name:

  	
  Charles Ritchie

  
	
   

  	
  Title:

  	
  Vice President

  



 
















 


	
   

  	
  COMERICA BANK, CANADA BRANCH

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ ROBERT C. ROSEN

  	
   

  
	
   

  	
  Name:

  	
  Robert C. Rosen

  
	
   

  	
  Title:

  	
  Vice President

  



 
















 


	
   

  	
  THE BANK OF NOVA SCOTIA

  
	
   

  	
  as a Lender and as a Co-Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ BRIAN WILLIAMSON

  	
   

  
	
   

  	
  Name:

  	
  Brian Williamson

  
	
   

  	
  Title:

  	
  Director

  



 
















 


	
   

  	
  JPMORGAN CHASE BANK,

  
	
   

  	
  TORONTO BRANCH

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ DREW MCDONALD

  	
   

  
	
   

  	
  Name:

  	
  Drew McDonald

  
	
   

  	
  Title:

  	
  Vice President

  



 
















 


	
   

  	
  THE TORONTO-DOMINION BANK

  
	
   

  	
  as a Lender and as a Co-Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ PARIN KANJI

  	
   

  
	
   

  	
  Name:

  	
  Parin Kanji

  
	
   

  	
  Title:

  	
  Assistant Manager – Corporate Credit

  



 
















 


	
   

  	
  UNION BANK OF CALIFORNIA

  
	
   

  	
  CANADA BRANCH

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ DUSTIN GASPARI

  	
   

  
	
   

  	
  Name:

  	
  Dustin Gaspari

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ JAMES CHEPYHA

  	
   

  
	
   

  	
  Name:

  	
  James Chepyha

  
	
   

  	
  Title:

  	
  Vice President

  



 
















 


	
   

  	
  CREDIT SUISSE FIRST BOSTON

  
	
   

  	
  TORONTO BRANCH

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ ALAIN DAOUST

  	
   

  
	
   

  	
  Name:

  	
  Alain Daoust

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ PETER CHAUVIN

  	
   

  
	
   

  	
  Name:

  	
  Peter Chauvin

  
	
   

  	
  Title:

  	
  Vice President

  



 
















 


	
   

  	
  BANK OF AMERICA N.A.,

  
	
   

  	
  CANADA BRANCH

  
	
   

  	
  by its Canada branch

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ MEDINA SALES DE ANDRADE

  	
   

  
	
   

  	
  Name:

  	
  Medina Sales de Andrade

  
	
   

  	
  Title:

  	
  Assistant Vice President

  



 
















 


EXHIBIT A


 


THIRD AMENDMENT TO U.S. CREDIT AGREEMENT


 
















 


PRICING SCHEDULE


 


APPLICABLE MARGIN


 


	
  Borrowing
  Base Usage

  	
   

  	
  Applicable Margin

  for Prime Rate

  Loans

  	
   

  	
  Applicable Margin for

  BA Rate Loans

  	
   

  	
  Applicable Margin

  for 

  Unused

  Commitment Fee

  	
   

  
	
  Greater than or equal to 90%

  	
   

  	
  1.00

  	
  %

  	
  2.00

  	
  %

  	
  .50

  	
  %

  
	
  Greater than or equal to 75% and less than
  90%

  	
   

  	
  .75

  	
  %

  	
  1.75

  	
  %

  	
  .50

  	
  %

  
	
  Greater than or equal to 50% and less than
  75%

  	
   

  	
  .50

  	
  %

  	
  1.50

  	
  %

  	
  .375

  	
  %

  
	
  Less than 50%

  	
   

  	
  .25

  	
  %

  	
  1.25

  	
  %

  	
  .25

  	
  %